Surrogacy opponents lay out key differences in legislative hearings

Editor’s note: This is the third story in a series on surrogacy, which a Minnesota State Legislature commission is studying as it prepares to make public policy recommendations on the practice.

As the discussion on surrogacy continues before a Minnesota state legislative commission studying the issue, the divide between the two sides becomes clearer, even as proponents of the practice try to normalize it.

In the latest round of testimony Sept. 27, proponents compared surrogacy to adoption.

“You don’t buy and sell babies in an adoption procedure, but there are costs paid,” said surrogacy lawyer Gary Debele.

But the kind of costs paid in surrogacy prove to opponents that the industry is commerce in babies. In addition to reimbursement for medical expenses, in many surrogacies, “a big fee is paid for carrying the child,” Debele also testified Sept. 27. In adoption, direct compensation is illegal, and any financial support of the birth mother during pregnancy is strictly limited. Surrogacy agencies, however, advertise that surrogates can earn up to $40,000 per pregnancy.

“There’s no question that surrogacy involves the selling of the child,” surrogacy opponent Harold Cassidy had stated in testimony during an August commission meeting.

Cassidy has represented troubled surrogate mothers since the 1980s and is currently representing Melissa Cook, a surrogate mother in California who was pressured by the intended father to abort one of the triplets she was carrying. Cassidy also has experience in adoption law. Earlier in his career he represented birth mothers who had been pressured to surrender their children. In many cases, the adoption was overturned. Since then, laws have been enacted to ensure that mothers make a completely free and voluntary choice. A child cannot be surrendered and no legal agreement can be made until 72 hours after the birth. The adoption is not final until 90 days after the placement. The child is only separated from its mother after careful consideration and for a serious reason.

“There were situations where the mom was unable to care for the child. It happens, and the culture had to come to the rescue of those children to provide them a home,” he stated.

Surrogacy, however, is not an intervention, he stressed.

“Surrogacies are planned before the child is even conceived. To what? Separate a baby from the mother who carried the child,” he said. “What the intended parents are bargaining for is not a service to carry a child. What the intended parents are bargaining for is exclusive custody and control over the child.”

The Cook case is a good example. Early in the surrogacy arrangement, according to court documents, the intended father wrote Cook in an email, “I would let you keep my babies for weeks till you feel [it is the] right time for them to being [sic] ready to be home with me.”

Then, later in the pregnancy, after he had expressed concern about his ability to care for the triplets Cook was carrying, he ignored her repeated offers to care for all three babies for several months after their birth and to raise the third child he said he could not handle. Instead, he insisted she have an abortion. The court, too, refused to hear her petition for custody of the third child, claiming that because of the surrogacy contract, it could not intervene.

Cassidy said that violates the rights of the child.

“Let’s look at what we’re really talking about,” he told the commission. “We talking about using a document that is signed before the child even exits, before the mom has a relationship with the child, before we know if the child is even going to come into existence. We use it as waiver of the future rights of the child, the future rights of the mother without regard for whether it’s a good idea and whether the mother really understands what she’s getting into.”

For opponents, this point exposes the fundamental difference between surrogacy and adoption. While adoption revolves around the child, surrogacy revolves around adults.

“Throughout our history, the central focus of child rearing is what’s in the best interest of the child,” Cassidy said. “Here, for the first time, we’re talking about writing laws that are going to have as its central purpose not the best interest of the children. It’s going to be the desires of the adult. We are fundamentally shifting the focus of child rearing.”

Misplaced desire

Surrogacy supporters have repeatedly referred to the “dream to become parents” of people who seek surrogacy. While having children is a good, the way of going about it matters, too.

“Desiring a child is a good thing,” said Deborah Savage, a professor at the St. Paul Seminary School of Divinity and co-director of the Siena Symposium for Women, Family, and Culture, both in St. Paul. “But children are gifts; they are given. We have no right to a child, because a child is not the same thing as a good meal.”

Savage speaks from personal experience. When she and her husband were unable to have children, she prayed. Six years later, out of the blue, a friend called. Her teenage daughter was unexpectedly pregnant and wanted Savage and her husband to adopt the child.

“Wanda didn’t not want Maddie. Clearly, she was doing it out of love for Maddie,” Savage said.

Parenthood is about the good of the child.

“A child is not a means to my happiness, he’s created for his own sake,” Savage explained.

As human persons with “their own right to life, their own destiny,” parents must respect the human dignity of their children. Savage agrees with Cassidy that a child has to be respected as a human person even at their conception.

“We think of children wrongly,” Savage explained. “To say that this child has no rights because this child doesn’t exist is to deny that we were all at one time pure potency.”

Pure potency is a philosophical term for the potential to exist. No one brings himself into existence, “we are all gifts to one another,” Savage said. “Placing a price and having a right-by-contract over the life of another treats that person as a commodity, not a gift.”

She added: “By definition, I don’t have a right to something that is a gift.”